//  7/16/19  //  Uncategorized

Last week, in response to litigation brought by Columbia’s Knight First Amendment Institute, a federal appeals court handed a major defeat to President Trump, ruling that his selective blocking of critics on Twitter violated the First Amendment.  This ruling is a landmark in applying the First Amendment in the digital age and, moreover, in thwarting government officials’ efforts to censor and skew political dialogue on social media.

But this ruling is as important for what it isn’t as for what it is.  Contrary to some descriptions of the court’s holding, the court applied the First Amendment to President Trump—appropriately, given that he’s a government official—but not to all of Twitter.

Let’s start with what the Second Circuit Court of Appeals actually addressed.  The facts, as agreed upon by the government and those challenging it, are striking.  The government itself had characterized tweets sent from the @realDonaldTrump Twitter account as official statements of the President, including at press conferences, during litigation, and in correspondence with Congress.  Additionally, a mere glance at the account shows that President Trump has decided to utilize this account in a manner that allows a back-and-forth with others, through replies, replies-to-replies, likes, comments, and retweets.  And, as the court emphasized, President Trump’s lawyers acknowledged that he’d been selectively blocking from the @realDonaldTrump account those whose critiques of him and his policies annoyed him. In other words, President Trump imposed no limits on participation in the conversation on the @realDonaldTrump account—except by blocking those who criticized him.  All told, the elements of a classic First Amendment claim to viewpoint discrimination were on display: a government official had opened a public forum for an exchange of views in a government-controlled venue, then silenced unwanted voices there.

If the elements of a First Amendment violation were traditional ones, the court’s holding was nonetheless a breakthrough.  That’s because recognizing in today’s new and still-evolving digital architecture the contours of established First Amendment law is no small feat.  Indeed, it was precisely to ensure that such case law was properly applied to social media that my colleagues at Georgetown Law’s Institute for Constitutional Advocacy and Protection and I filed in this case—first in the district court and then on appeal—an amicus brief on behalf of leading First Amendment scholars.  For the court of appeals to vindicate the principles of the First Amendment in the context of a new technology not only represents a quintessential common law step but also—as we explained in the brief—avoids allowing President Trump to embrace the online tactics of “authoritarian regimes . . . able to cultivate a false impression that political leaders are supported by the public, thereby warping people’s understanding of how those leaders are really viewed by others.”

That’s big—really big.  But the court’s holding is not as big as some of its critics claim.  And that’s a good thing: the principles embraced and espoused by the court are correct precisely because they’re focused on government actors operating on social media, not on social media platforms themselves.

One leading commentator, criticizing the Second Circuit’s ruling, avowed that the decision mistook the public forum created by President Trump for a public forum operated by Twitter itself: “A private company is allowing a public official to use the private company’s services to amplify his message.  The private company is in legal control, not the public official.”  Another critic, going further, argued that the court’s decision was “actually bad for free speech” and echoed the notion that “Twitter decides what happens on its platform—even on Trump’s feed.”  This picks up on concerns expressed after the district court’s earlier, similar ruling that “[u]sers who are blocked altogether from Twitter are going to start suing the company on the ground that they are being excluded from what the court has deemed the ‘designated public forum’ associated with Trump’s account.”

Put it this way: if the Second Circuit’s holding were a sentence, the object of the verb in that sentence would be clear—and it wouldn’t be Twitter.  Instead, it would be the President who’s using a limited amount of Twitter’s vast virtual expanse to host a political dialogue.

As Professor Larry Tribe and I have phrased it elsewhere, “Think of it as the digital equivalent of a president renting a ballroom in a hotel owned privately rather than by the government or even the president himself—and then using the space to host not a private, invitation-only fundraiser for a campaign, but a public town hall in a space accommodating more people than the public rooms in the White House can.”  Before the President gets involved—either on Twitter or in a hotel ballroom—the First Amendment generally isn’t applicable, as it applies only to state action.  But once the President is involved in an official capacity, he effectively brings with him the First Amendment—including its limits on his own ability to silence voices in the very spaces to which the Amendment’s protections didn’t apply before his involvement.

That doesn’t change how Twitter (or a hotel) operates when there’s no government official involved.  For better or for worse, Twitter remains free to enforce its own terms of service on, well, its own terms—not according to the dictates of the First Amendment.  That means retaining the power to block accounts from engaging with all of the Twitterverse—even the government officials speaking on it.

That’s an extraordinary power, to be sure.  But so are many of the powers of today’s dominant tech companies: powers to give voice, to take it away, to tweak algorithms such that users tend to see only certain content, and so on.  These are powers that the law might well have much to say about in coming years, either through existing bodies of law like antitrust or through entirely new statutory frameworks and implementing regulations.  What doesn’t address these extraordinary powers, however, is the First Amendment.

That applies to government officials like the President, and it keeps them from selectively silencing criticism—including online.  Hard questions still await the courts about exactly how that application of First Amendment law should function in various factual circumstances; and even harder questions remain for all of us about how to ensure that government actors and so many others are unable to distort online dialogue to the detriment of democracy.  But, last week, one court got the answer to one of those questions right.


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